Judicial Disqualification: An Analysis of Federal Law

Judicial Disqualification: An Analysis of Federal Law (second edition) outlines the statutory framework of federal judicial disqualification law under the statutes, 28 U.S.C. §§ 455, 144, 47, and 2106. The monograph substantially revises and expands on the first edition, and analyzes the case law, with a focus both on substantive disqualification standards and procedural requirements. It features a revised organizational structure and includes new material, as well as updated cases.

Preface, vii

Acknowledgments, ix

Introduction, 1 I.

History of Judicial Disqualification, 5

II. Disqualification Under 28 U.S.C. § 455, 9 A. Overview, 9

1. The text of § 455,

9 2. Interpretive ground rules,

11 a. Interpreting § 455(a) in relation to § 455(b),

11 b. Balancing the duty to decide and the duty to disqualify,

12 c. The rule of necessity,

13 d. Special concerns in bench trials,

15 e. Standing,

16 B. Grounds for disqualification,

17 1. General standard: when impartiality might reasonably be questioned—§ 455(a),

17 a. Framework for analysis,

17 b. Recurring scenarios,

22 i. Judge’s prior relationship with parties, witnesses, or lawyers,

22 ii. Judge’s conduct in judicial proceedings,

30 iii. Judge’s extrajudicial conduct,

40 iv. Party’s conduct toward judge,

46 2. Specific grounds: § 455(b),

49 a. Personal bias, prejudice, or knowledge: § 455(b)(1),

49 i. Bias and prejudice, 49

ii. Extrajudicial source of bias, 51

iii. Bias against nonparties, 53

iv. Knowledge of disputed evidentiary facts, 54

b. Prior association with matter as private practitioner or witness: § 455

(b)(2), 55 c. Prior association with matter as governmental employee: § 455

(b)(3), 57 d. Financial interest in matter: § 455

(b)(4) and § 455(f), 60

i. Disqualification for financial interest, 60

ii. Divestiture as a cure for financial interest disqualification, 63

vi Judicial Disqualification: An Analysis of Federal Law

e. Other interests of judge and judge’s family: § 455(b)(5), 66

i. Where judge or relatives are parties or associated with parties, 66

ii. Where judge or relatives acting as lawyer, 67

iii.Where judge or relatives have an interest that could be substantially affected, 69

iv. Where judge or relatives likely to be material witnesses, 72

C. Disqualification procedure, 72

1. Investigating disqualification claims, 73

2. Waiver of disqualification: § 455(e), 74

3. Timeliness of disqualification motion, 76

4. Evaluation of motion by merits judge, 78

5. Judge’s postdisqualification authority, 79

III. Disqualification Under 28 U.S.C. § 144, 83

A. Overview, 83 B. Grounds for disqualification, 85

1. Bias or prejudice, 85

2. Extrajudicial source doctrine revisited, 85

3. Bias toward counsel, 87

C. Disqualification procedure, 89

1. Timeliness, 89

2. Facially sufficient affidavit, 90

3. Counsel’s certificate of good faith, 93

IV. Disqualification Under 28 U.S.C. § 7, 95

V. Disqualification on Appeal, 97

A. Routes of appellate review, 97

B. Standards of review, 99

C. Issues on appeal, 102

1. Harmless error, 102

2. Reviewability of lower court decisions to disqualify, 104

3. Mootness of underlying dispute, 106

4. Impact of guilty plea on reviewability of nondisqualification, 107

5. Jurisdiction, 108

D. Disqualification under 28 U.S.C. § 2106, 109

Appendix: Code of Conduct for United States Judges, Canons 3C and 3D, 115

For Further Reference, 119 Table of Cases, 121

Judges serving at all levels of the judicial system, families and past associates of serving judges and pontential judical appointees.